Empire Holding Corp. v. Coshow , 150 Or. 252 ( 1935 )

Petition for rehearing denied April 16, 1935 ON PETITION FOR REHEARING (43 P.2d 907) BAILEY, J.

The appellant assigns as one of his reasons for requesting a rehearing the failure of this court in its former opinion to hold that the note was not due and payable at the time the action was commenced. The note was dated November 14, 1930, and according to its provisions was payable on or before five years from date, "with interest thereon at the rate of 7 per cent per annum from date to maturity and from maturity until paid". It contained no other condition as to payment of interest.

The appellant as defendant in the circuit court did not attempt to defer the bringing of the action by the plaintiff, but by setting up various defenses essayed to defeat any recovery whatever on the note by plaintiff. He did not demur to the complaint on the ground that the action was prematurely brought, nor was that question raised by a plea in abatement. Since he did not so avail himself of it, this defense was waived: Winters v. Grimes,124 Or. 214 (264 P. 359); Sutherlin v. Bloomer, 50 Or. 398 (93 P. 135); Chamberlain v. Hibbard, 26 Or. 428 (38 P. 437).

The contention that the action was prematurely brought seems to have been an afterthought on the part of the defendant. He did not raise that question in either his opening or reply brief in this court. In fact, he seems to have relied upon the alleged fact that the note was not yet due, in order to evoke the equity jurisdiction of the court, for we find in his reply brief this statement: "The receiver brings this action on this note upon which by its terms there is nothing now due and payable. The defendant could have contented himself by contesting payment on the ground nothing was due, but that would not have afforded him complete relief."

The other questions raised by the petition for rehearing were fully considered and disposed of in our former opinion.

The petition for rehearing is denied.

BELT, J., not participating.

Objections to cost bill sustained in part May 14, 1935 ON OBJECTIONS TO COST BILL (45 P.2d 167) The respondent has filed objections to some of the items included in appellant's statement of costs and disbursements, on the ground that the cost bill containing these items was not filed within five days after the rendition of the decision of this court or "not later than the first day of the next regular term of court occurring after the expiration of said five days". The opinion on this appeal was filed February 19, 1935, and an extension of time was then obtained by the appellant for filing petition for rehearing. This petition was denied April 16, 1935, and the cost bill was filed on April 22 following. The mandate has not yet been issued. The new term of this court began March 4, 1935.

In the case of In re Will of Pittock, 102 Or. 159 (199 P. 633, 202 P. 216, 17 A.L.R. 218), this court after reviewing many of its prior decisions held that the allowance and taxation of costs and disbursements in this court was controlled by statutes now known as §§ 7-605, 7-606, 7-607, 7-609 and 7-610, Oregon Code 1930. The opinion therein on the merits was handed down July 26, 1921, and the statement of costs and disbursements was not filed until September 8 of the same year, after service on the day previous. Two days after the filing of this cost bill the contestant filed objections to it on the ground that it had not been presented within the time required by law or the rules of this court. Thereupon, the clerk allowed only statutory costs in the sum of $25 and rejected the item charged for printing of brief. On motion to retax costs this court held that the cost bill was filed within the time allowed by statute and that the clerk of this court had no authority to pass upon objections to cost bills, as that, since the amendment of 1903, was a matter for the court alone.

This court there called attention to the fact that § 569 Or. L. [now § 7-609, supra] provided that the party entitled to costs might file his cost bill within five days after the rendition of the decision by this court, without proof of service thereof on the adverse party unless some rule of court required such service, and that if it was not filed within five days it might be filed at any time thereafter "but not later than the first day of the next regular term of court occurring after the expiration of said five days", by serving the adverse party, whether the said party had appeared or not. It was further held by the court in that case that the rules of this court could not alter or change the statute relating to time within which the statement of costs and disbursements should be filed, and the opinion expressly overruled all the previous cases of this court holding that the sections of the code above referred to, relating to the time in which cost bills could be filed, did not apply to the supreme court. Since the case of In re Will of Pittock, supra, was decided, this court, so far as we have been able to ascertain, has consistently followed the rule there laid down: State v.Way, 120 Or. 134 (249 P. 1045, 251 P. 761); McKinney v.Nayberger, 138 Or. 203 (295 P. 474, 2 P.2d 1111,6 P.2d 229).

The time for computing the five days begins on the date when the opinion is handed down, and is not extended by the pendency of a petition for rehearing: McFarlane v. McFarlane,43 Or. 477 (73 P. 203, 75 P. 139). The statutory costs, such as filing fee, trial fee and prevailing attorneys' fee, are allowed as a matter of course without the filing of a cost bill:Anderson v. Adams, 44 Or. 529 (76 P. 16). However, under § 7-609, supra, it is expressly provided that no disbursements shall be allowed unless a statement thereof be filed within the time therein provided. In the case at bar the new term began more than five days after the rendition of the opinion on the merits, and therefore it was necessary to file the bill on or before March 4, 1935, the first day of the new term of court. Therefore the appellant is entitled to his costs only. His claim for disbursements is disallowed.

CAMPBELL, C.J., and BELT, J., not participating.